We're liveblogging this weekend from The Texas Tribune Festival's Law & Order track, which includes panels on exonerated inmates, the fight over forensic science, prosecutorial misconduct and the future of juvenile justice.
Featured speakers include exoneree Michael Morton, criminal justice advocate Anthony Graves, Dallas County District Attorney Craig Watkins and criminal defense attorney Rusty Hardin.
Follow us here for updates from the University of Texas at Austin campus.
"Through tragedy," Grissom says, "may come some solutions."
Smith says he considered suicide while in prison. "I didn't have anything else to live for," he says.
When you're in for sexual assault, you're looked upon by inmates as a "strange character," Smith says.
Smith explains how he went to prison a Christian and converted to Islam. This led him to believe there was "a way to get out."
Even though the prison experience was hard on me, Smith says, "I have a hard time now living this down." Grissom transitions to life after prison. "In your case," she says to Cook, "you're still dealing with this conviction, trying to get it overturned."
Cook says Smith County officials were looking for a certain profile of a "misogynistic homosexual." Once he was arrested, he "fit that profile" for the officials. "Everyone who has ever gone to prison," Cook says, has to be "very careful who you talk to."
When you're innocent, he says, "you're different." You "don't have that hatred for the system, yet." The more you say you're innocent, the more vulnerable you become, because others perceive you as unable to respond to violence. "I didn't go to death row a killer...the more they raped me, stabbed me, I couldn't do anything about it," Cook says.
Grissom asks how you protect yourself from being victimized. "Everyone is different," explains Morton. "It's all based on your personality type." There are a lot of predators in person, but if you "clock the first person who give you any grief," it goes a long way. "Nobody wins every fight. There's nothing wrong with being in a fight if you're trying to protect yourself," he says. "That wasn't my experience in the free world, before I went to prison."
"All of our social contract, in the end, is based on force," says Morton. "The universal language in prison is violence," Cook agrees. "You need to stab someone to get everyone to leave you alone." The problem, he adds, is that sometimes you have to keep "clocking" people. But because he was innocent, Cook says, his violence was used against him to show he was violent. "I never let them run over me," he says, "but the more innocent I became, the more weak I was perceived. It works against you."
"I fought with the law books," says Smith. It was a struggle to keep his anger in the face of all the abuse I faced, he says, but "something would pull me back, make me have the discipline to walk away. "Every day was a struggle to keep from fighting."
There's no way to make up for the years lost, Grissom says, but one thing we can try to do is learn from what went wrong in each of these cases. She asks Morton to talk about solutions.
"No matter what we do about it," Morton says, "we can't change what happened in the past." He says we don't need "wholesale revolution." But "we can make small legislative changes." Two ideas for this session, Morton says, will "prevent this stuff from happening again."
Making proscutors liable, Morton says, will be one way to stop abuse in the system. Their law licenses are their livelihood, he says, and telling prosecutors to "obey the rules" will make the "system work the way it's supposed to work."
Prosecutors and judges are all elected, Cook says, "cloaked in absolute qualified immunity," or the ability to "lie, cheat and steal their way to the execution chamber." He says he wishes Rob Kepple, head of the Texas District and County Attorneys Association, were here, because "they reward prosecutorial misconduct." He points to the fact that the prosecutor in his case, Jack Skeen, later became a judge, appointed by Gov. Rick Perry.
It all starts with the arresting officer, Smith says, well before it gets to the District Attorney. "So many procedural errors take place," he explains, but he is not confident lawmakers will address the issue. "I hope district attorneys can be held responsible for their actions, but we need to be realistic here."
Smith points to Craig Watkins, DA of Dallas County, who just walked in, and credits him with "seeking justice first, instead of conviction." A lot of attorneys want this to happen, agrees Morton. "All attorneys want reform in this area because it adds integrity to the system, and their livelihood relies on us having faith in the system."
Another exoneree in the audience stands and says, "They don't want to believe it could happen to anyone, that you could be the next victim of a criminal justice system."
"The suppression of Brady material," Cook says, referring to evidence held from a defense attorney which could be exculpatory (and prove innocence in some of these cases), is still rampant. The Supreme Court decision on the subject "has no teeth."
The Q&A session has begun.
"Does Texas run a good prison system?" an audience member asks. Cook says the system is still understaffed. "If you're one of the innocent inmates, it's a sentence from hell," he says.
Morton explains that prison is a business, and Smith says there are some things you can take advantage of in prison to become a better person, vocational programs, etc. But overall, Smith says, "nobody can go to prison for a long time and not be effected."
Morton explains that the the collateral damage of going to prison, whether you're innocent or guilty, is the effect on your family members and friends. If you're innocent, he adds, the guilty one is still out there.
Actual innocence, Smith says, is very hard to prove. He discusses a friend who died before he could prove his innocence. "He did over 25 years in prison. DNA cleared him," he says. "He never got his actual innocence claim. He died without ever being able to clear his name."
Question: Why is it so difficult to get DNA testing?
Smith: When I first applied for it in 2000, I was denied. I went back again in 2003 and filed for it and got it granted. "I had been in prison 20 years, so I wasn't trying to trust them." After his testing, it took another 3 or 4 months before he heard more.
We've concluded 'Free at Last: Three Stories of Innocence," at the Law & Order track. Up next: The Fight Over Forensic Science. See more information about the participants here.
And we're back with The Fight Over Forensic Science, moderated by Michael Hall of Texas Monthly. We'll be getting started momentarily.
"How has Texas done in the courts with forensic science?"
"A terrible job," says Jeff Blackburn of the Innocence Project of Texas. "We have to do better in other branches of government, because by and large the Court of Criminal Appeals has given up its function of improving the criminal justice system." That's heresy, he admits, but "their record is quite bad." He mentions Ex Parte Robbins, which he says means "nobody is going to come out of prison no matter how flawed the forensic science was that put them into prison."
"Jeff, you ignorant slut," jokes Shannon Edmonds, of the Texas County and District Attorneys Association, quoting Saturday Night Live. "This doesn't have to be a fight," he says. "The science is just coming into existence in a lot of these areas." Plus, he says, crime was at an all time high in the 70's and 80's, and so we didn't have the luxury. He says crime has dropped 42% and "we've been a victim of our own success" over in criminal justice.
"We can only do so much with training," says Edmonds regarding prosecutors, "if the funding isn't there...If we really want to end wrongful convictions, we need to put our money where our mouth is."
Anchia, State Representative out of Dallas, notes that he's a corporate lawyer, so "this was a bit of uncharted territory for me." But "this is an issue that cuts across party lines," since innocence is a personal liberty issue. "I fear we've lost some important decision-makers," he adds. "We have reached a tipping point in the legislature," he says of innocence and exoneration. "There used to be some members of the legislature who were focused on a tough on crime, rather than smart on crime approach."
Anchia describes the shock of people in Buenos Aires when he told them we elect judges. "And you call us corrupt!?" they responded.
He blames the media for popularizing the term "junk science."
"The State of Texas has come around and joined us as partners," Peerwani says. "I personally am very excited and we recommend...education, adopting national standards, and I think the State sincerely wants to do that."
He also says we need "retroactive case review." Forensic science, he says, is a "multi-disciplinary beast." There is "no truth and falsehood in science, we talk in terms of probabilities."
Peerwani discusses "unfunded mandates." There aren't enough forensic pathologists in the country, much less Texas, he says. Hall asks Blackburn what he means by "junk science."
Blackburn talks about "dog-scent lineups" (Hall has a Texas Monthly article on the topic). He describes an expert witness who had "magic dogs" that could tell who was at a crime scene even years before, and jurors believed him. "Why not have a crime scene baby? A unicorn?" he says. "There are people serving time in prison in Texas based on evidence like that...that's an example of where the court system has gotten to."
Blackburn: "Sometimes honest mistakes get made, but sometimes it's not so honest."
He also notes the differences between counties in Texas. "Some of the counties I practice in, when they get busy trying to convince somebody, they're going to bring in the dogs...It's coing to be up to the Legislature to correct the process," he says.
Edmonds: "One man's junk science is another man's DNA. It was prosecutors who got DNA accepted, and the defense bar fought it."
He mentions research into "shaken baby cases." He says prosecutors aren't trying to convict someone, but "we're at the mercy at the state of the science."
Edmonds says the admissibility of a particular science should not depend on who has "better lobbyists," directly contradicting Blackburn's call for the Legislature to decide what kind of science is admissible in court. "The courts need to do that," he says, "and the legislature should equip them," with funding and resources.
Anchia: "We can rely on the legislative branch...not picking winners and losers but setting the rules of the game."
"We've got to set the clear lines and then you take it from there."
Anchia again worries about the new members of the Legislature in terms of these issues.
He worries that funding cuts "really ties all our hands," regardless of the issue. "We abdicate our responsibility to work on these issues like life and liberty."
"As a scientist," says Peerwani, "I want everything that has to be known presented to me before I make a decision." He tells Blackburn that we're way ahead of the rest of the world. In other countries, he says, the scientist is "a God getting up on the stand." We're lucky to be able to challenge scientific testimony in court.
Blackburn challenges poor funding for public defense, saying this keeps the adversarial system from really working as it's supposed to. "We're stuck with what we have," he says. The Court of Criminal Appeals "has a deep bias against letting people out."
"We are all the time discovering new things," says Peerwani. "Just because we have discarded something in the past means it was junk at the time...It was our understanding."
"So what's the remedy?" says Anchia. "Science is always changing, but science is used to convict people."
Edmonds says this is a problem for prosecutors too. "Your heart sinks," he says, when 10 years after a conviction you find out the science has changed and you made a mistake. "I think what you have to do is implement checks and balances."
"The problem is lack of people to do the testing," Edmonds says. In the Hank Skinner case, the defense lawyer is attacking the prosecutor for not testing every piece of evidence for DNA. "That would shut down a lab while thousands of other people sit in jail waiting for their cases to be tested," he says. As long as we don't have the resources, he thinks, we'll all be frustrated.
Peerwani says his lab has a 2 year backlog. "In a regular DNA case, I would have 20-30 samples, and the DA wants every sample analyzed," he says. "I am in the middle of your fight!"
"Wrongful convictions are a great engine of change," says Blackburn. "We need to look backward and pull people out."
And now, the questions and answers:
Edmonds: "Prosecutors are also human. They can suffer from cognitive bias...We need to as a profession address that culture." But the mistake, he says, is looking at a case that happened in 1984 and assuming it's the same way today.
"I don't think people remember how crime used to be an issue. Campaigns used to run Willie Horton ads, because everyone was afraid of crime," Edmonds continues. "We can learn some lessons from some of these older cases, but we have to be careful today making criminal justice policy based on what happened 20 years ago."
Peerwani on expert witnesses at trials: "It's very important for the jury that the expert uses plain English, that he tells them why and spends the time explaining...and he supports what he's saying with concrete evidence."
Blackburn says his colleagues are looking at other systems for public defense. He credits Colorado for having a good system. "If you give defense lawyers a chance...and you have good defense lawyers, not court-appointed clowns we have now...It should be about winning, but winning on a level playing field," he says.
Hon, of Polk County, discusses recent efforts to define just what exactly prosecutorial misconduct is. He says its when prosecutors "deliberately" try to seek an "unjust result."
Grissom notes there have been competing reports about how rampant the problem is.
"As we move forward on this issue," DA Craig Watkins of Dallas County says, "we need to address it from the perspective of making the discipline stricter for prosecutors." He describes the pressure to appear tough on crime elected DA's felt before him. "Did I make that same mistake?" he asks. "I don't want the pendulum to swing all the way over to the other side," arguing for the innocence of someone who isn't innocent. He calls for "taking the politics out of it, and having an honest conversation."
"We should be held to a very different standard from defense attorneys," Watkins says of prosecutors. "When we are seeking justice...that we are above reproach."
Grissom asks Lykos about the causes. "I think its important to distinguish error from misconduct," Lykos says. She outlines her background as a police officer, defense attorney, judge, and DA. "It all starts with your fundamental understanding. What is the role of government?"
"The rule of law is the foundation of a decent, robust society," she says. "Justice and order are inextricably intertwined."
She thinks the focus needs to be on conduct, not misconduct. She says some of the worst misconduct actually happens on the federal level, noting Ted Stevens' case.
Lykos describes her office's transparency with defense lawyers, many of whom don't even show up to get a copy of the offense report. "As prosecutors we are the guardians of our republic," she says. She describes 5 exonerations from her county, saying "there was nothing evil or sinister about it."
"While he may strike hard blows, he is not at liberty to strike foul ones," she quotes from the Supreme Court. "I like that archaic language, don't you?"
She says the problem is often resources. Public defenders stop taking cases when they run out of resources, while DA's cannot. "We can't do drive-by in the criminal justice system." She believes that while prosecutorial misconduct is the "issue du jour," but we have to remember its about conduct in general.
"There is honest disagreement about the law," Lykos says about the difference between error and wrongdoing. "That does not mean that there is misconduct."
Anthony Graves: "My children grew up without a father, whether it's error or misconduct." He says we "need to have safeguards in place to protect people from themselves." He thinks the election process is "corrupting our system," because it creates a pressure on prosecutors to convict.
Grissom: What kinds of accountability should there be?
Hon says it has been hard to get data how on often prosecutors are being grieved against and sanctioned. He says his organization needs to know how prevalent the problems are.
Watkins: "We need to go down the historical path...I'm uniquely situated because of who I am, to have a very different perspective."
Watkins: "If you have a historical perspective on the law...I would hope that we would find more fortitude and backbone to adequately put restraints in place to make sure this never happens." He says that maybe the problem is with the 4-year statute of limitations.
"I think it comes down to the culture of the office," says Watkins. "Just because the Supreme Court says it was wrong doesn't mean it's going to change overnight...Let's just be honest with the public."
More money is needed, says Hon, mentioning a study out of Florida that found that the number one cause of misconduct of this sort came from inadequate funding. "We're battling now a lack of resources for DNA testing. Dept. of Public Safety labs are underfunded and understaffed."
Watkins agrees about the need for more funding.
Lykos: "There ought to be total disclosure" to defense attorneys.
Lykos says sometimes unintended consequences are good, and that Houston's jail population dropped when she forced double testing before charges.
Graves: "There should be more transparency...Where does the truth come in? The problem is we have drawn a line in the sand, we're not playing on the same team anymore." He says this gets lost in the conversation, that nobody is talking about justice.
Watkins says the problem will be difficult to legislate away, but that elections may help. He says "When the issues are brought to light, the public will determine what they want," pointing to the electoral loss the of DA in Williamson County in the wake of the Morton case.
Lykos: "Where is that line between prosecutors needing to seek the truth and to seek justice and to have the trust and confidence of the community?...There are so many dynamics involved."
Question about bill that would establish committee to investigate reasons for wrongful conviction:
Watkins says Texas is leading the nation, especially on the compensation of exonerees, as well as on DNA testing, conviction integrity units in Dallas and Houston, and simply the fact that we have more exonerations here than in other states.
Hon explains that big cities have the money to create conviction integrity units, and that small counties don't have enough resources to do this. He says his organization is asking the Dept. of Public Safety to help local DA's look at potential instances of a "bad outcome or result." He says "we're trying to be proactive."
Question about pressures on prosecutors that lead to misconduct and error:
Grissom mentions conversations with Watkins about "tunnel vision." Watkins says the problem starts early in the process, when the police department "keys in" on one person. The DA has to trust "all those agencies that came before us" when they seek conviction. "It's less about misconduct, and its more about the system," he says. "Because we didn't know. Now we do."
Hon: "I'd like to think most prosecutors don't disregard evidence." The problem is an inability to recognize exculpatory evidence, he says, and at some point, the prosecutor becomes very convinced that "these are the fact of the case," and there's a tendency to look for evidence that supports you hypothesis. He says his profession is working on recognizing the issue.
Hon: "I'd like to think most prosecutors don't disregard evidence." The problem is an inability to recognize exculpatory evidence, he says, and at some point, the prosecutor becomes very convinced that "these are the fact of the case," and there's a tendency to look for evidence that supports you hypothesis. He says his profession is working on recognizing the issue.
That's it for Prosecutorial Misconduct. After lunch, we'll hear about the future of juvenile justice in Texas.
We're just a few minutes away from The Future of Juvenile Justice panel over in the Student Activity Center, with Deborah Fowler, Ana Yanez-Correa, Marc Levin, and Michael Griffiths, who just became the head of the Texas Juvenile Justice Department. Read his TT interview here.
Griffiths starts off talking about his vision for the agency, which he just took over as director. Kids need to be closer to home, he says, and there need to be more local initiatives and incentives for communities to take on the problem.
Fowler: We need to look at why the level of "chaos" in many facilities was so great. She believes there was a "radical shift" in 2007 after SB103 was passed. "In the state facilities it became pretty clear to us, talking to kids and staff," she says "that the new programs really weren't being implemented." She says she saw lots of kids with idle time, and inconsistent implementation of programs.
Griffiths says he plans to bring in some national experts. "The system as a whole needs to be reviewed," he explains. He says the Phoenix Program is a "necessary evil" at this point. "Ideally what you have to create is a behavior management system."
Deitch asks about budget cuts. Yanez-Correa says "the rights and money must follow the kids." She discusses a survey of probation departments about their needs. They overwhelmingly said they don't have enough money for mental health. It's impossible, she says, to "do right by these kids" without enough resources, even if the community is ready to be involved.
Levin mentions we have the lowest crime rate since 1963. He goes into multiple possible models out of San Antonio and Houston, including the CARE program, that have a record, albeit brief, of reducing recividism.
Griffiths describes the issues of putting together more and less serious offenders. Fowler thinks this has become a "red herring" in this context. She says that even programs like Giddings have high success rates, and that looking at the offense along doesn't tell you much. Griffiths agrees you have to look at "youth risk levels" and "empower them to do well."
Griffiths says the counties need the support for "evidence-based" programs. He says the problems are mainly going to be for small and mid-level counties, since major cities simply have more resources. "We're really going to need to look at regionalization and sharing services," he says. "The new model is a system. It's not the agency and the county. It's a system. Why can't the resources at state facilities help out counties?"
Yanez-Correa: "There are enough practictioners out there to come up with localized solutions." There needs to be money, yes, but also accountability and technical assistance. "You've got to be able to give practitioners the ability to use evidence-based approaches," she says. "There's not sufficient oversight."
Yanez-Correa describes a common debate between DA's and judges about whether the point is punishment or public safety.
Levin notes that fewer juveniles are coming into the system than ever. Fowler explains how they worried there would be a spike in kids in county facilities, but actually there is a drop across the board. Texas Appleseed, she says, consistently sees lots of counties "well below capacity" in their post-adjudication facilities. "A lot of that is functional family therapy," says Levin, "a juvenile probation officer coming to a home once or twice a week to help build structure." Levin thinks as a conservative this is a good way to have "less government" when families can take responsibility.
Yanez-Correa: Most of these children have horrible trauma, have gone through a lot. The more you implement restraint, and practices that further traumatize them, the longer they'll be in the system.
Fowler on the school to prison pipeline: We've found that even kids subject to detention once are much more likely to end up having contact with the juvenile system.
Fowler: A huge number of tickets are being issued for truancy/failure to attend school. Because they are going through the adult criminal court systems, all of the protections we normally think of for juveniles don't get attached. They don't get an attorney. There may be other collateral consequences for kids who maybe someday want to get a professional license.
Levin: There's a problem with 11 year-olds signing something saying they're going to appear in court.
Levin says our current education code has far too many offenses, including disrupting class with noise. He meantions Jeanette Moll's "tiered" model with "progressive sanctions." This has been implemented in Clayton County, Georgia, he says, and there's been a 20% increase in graduation rates. "We need to look at some of our zero tolerance laws," he says, noting mandatory suspensions for kids with alcohol in the backseat of their car. "We need to narrow these mandatory suspensions." Maybe the answer is giving principals discretion, he concludes.
We have to be careful not to confuse things: discretion can also be problematic, Yanez-Correa says. "These are symptoms to a much great problem." If the leader of a school believes in positive support, she says, you'll see a lower rate of expulsion. "We have to get down to what the schools need."
Fowler thinks Texas isn't ready to eliminate law enforcement at school campuses, but school districts need to look and see if this is something they want to prioritize in budgets, since it's expensive. "School crime hasn't increased greatly in the last 40 years," she says.
Levin agrees, but thinks there needs to be "some prosecutorial review of these citations" at schools handed out by law enforcement. He says these automatically get a court date scheduled, but might not all belong in the system.
Fowler thinks the real goal is to keep kids with mental health resources from ever coming into contact with the juvenile system. "You shouldn't have to criminalize someone to get mental health treatment," says Griffiths.
Yanez-Correa says that strengthening probation is crucial. She hopes that community supervision can be so successful in the juvenile area that the adult system will take notice. Griffiths laughs and says, "Well we all want it to be successful."
We are about to begin the fifth session in the law and order track, a legislative session preview. The panelists are Rep. Paul Workman, R-Austin, Sen. Joan Huffman, R-Southside Place, Rep. Marisa Marquez, D-El Paso and Sen. Jose Rodriguez. Our moderator is professor James Henson, director of the Politics Project at the University of Texas at Austin.
Henson asks the legislators to recap in law and order legislation from last session and preview what is coming up in the next.
Rodriguez is a former county prosecutor. Said he was tracking what would happen with the proposal to create an Innocence Commission. He reminds us of the controversy over the failed effort to reappoint now-outgoing Williamson County District Attorney John Bradley to the Forensic Science Commission.
Marquez says she has seen a transformation away from looking at prisons as more than a budgetary item but also policy behind bars, such as allowing inmates access to spiritual and educational materials and helping them to return to the community after their release. "How are we treating our inmates? How are we giving them tools?" she asked.
Marquez also reminds us of the legislation from 2011 that combined the Texas Youth Commisison and the Texas Juvenile Probation Commission.
"I don't know what the future holds," she said, "but I know you'll be asking."
Sen. Huffman says as a former prosecutor she sees things differently. Her focus is on safety. She's not a big proponent of new penalties, but instead making sure laws we have are already working.
She said progress was made last session in fine-tuning so-called Romeo and Juliet laws that make young people who engage in sexual activity register for years, or even for life, as sex offenders.
Huffman says things in the criminal justice system are often being done piecemeal instead of continually tracking an offender through their "career" in criminal justice.
Rep. Workman said that after he found where the bathrooms were during his first legislative session last year, he began to learn more about his issue areas, like criminal justice.
He suggested creating a kind of middle-level kind of campus with first-time offenders ages 17-23.
He said he is interested in reducing criminalization, because there are currently too many penalties.
Sen. Rodriguez said he is concerned about adequate funding for indigent defendants. Last session he was disappointed that lawmakers weren't willing to discuss fees or other ways to increase funding for adequate representation.
Marquez said she wants to continue monitoring the new Texas Juvenile Justice Department as well as the mental health care for them.
She also said she is concerned about the welfare of special populations, like women.
It costs 4-5 times more to medicate the mentally ill in jail instead of outside, Marquez said she was told by Harris County Sheriff Adrian Garcia.
Henson asks how they balance the demands of legislators for fiscal conservatism and law-and-order strength.
Huffman says it's possible to have both.
"We can save a lot of money if we invest in some comunity treatment for these people," who are mentally ill, Huffman said.
Sometimes that is hard to sell, she said
"There is a pay off," for early investments in areas like mental health, Huffman said. "It's just not always a quick payoff."
Huffman said she's about punishing those who are bad and treating those who can be treated in a smarter way while at the same time saving some money, Huffman said.
The families affected by the incarceration of their loved on are important, too, Marquez said.
"We tend to forget that," she said.
She says in the legislature lawmakers are getting better at seeing offenders as people, as youths in correctional facilities as children. There is more realization, she said, that offenders need to gain skills so they can return to society when they're released.
"Yes, we need to maintain safety in the community, but as taxpayers our resources are limited ... Yet, somehow we overlook the cost of incarceration," Sen. Rodriguez said. "We're not making wise investments in prevention and rehabilitation programs."
Investments now, he said, will got a long way in reducing prison population and improving services.
Marquez said many of our laws are not caught up with advances of technology, whether it's DNA or technologies like Facebook.
Sen. Huffman says she is opposed to this concept of an innocence commission.
"I don't think we need one," she said.
She said prosecutors are dealing with the problems.
We have to tweak the system and make it as fair and transparent as possible.
"I do not think we need an innocence commission to look over and grade everyone's paper," she said.
Rodriguez said he feels opposite of Huffman.
"I was a prosecutor for 17 terms," he said. "I feel very strongly about ensuring we do evetyign we can to avoid an innocent person getting convicted wrongly."
If that requires another level of bureaucracy like an innocence commisison, he is OK with that.
"That is the role of the system," he said. "Peope will have much more faith and confidence in the system if people are held accountable."
Marquez said she filed a bill last legislative session to take the death penalty off the table in cases where the conviction is based solely on eyewitness, not forensic evidence.
Workman said he also opposes an innocence commission. He said he thinks the system will work it out.
Henson asks lawmakers how much they hear from constituents about law and order.
Workman says almost nothing.
Huffman says she hears more, probably because of her background. "It's rising to a level of awareness with some people," she said regarding treatment in addition to being tough on crime.
Marquez says she often hears from inmates' families who are frustrated with the system and worried about the treatment of their loved ones who are incarcerated.
Rodriguez says he doesn't hear a whole lot from his constituents on criminal justice issues except for the role of law enforcement in "sanctuary city" proposals, which he is "totally opposed to." He says community policing would be damaged by a policy that would have local police enforce federal immigration laws. Immigrants, he said, won't report crime or come forward as witnesses if they're afraid of the police or that they might be deported.
Audience member asks lawmakers about whether we should keep electing judges.
Sen. Huffman says she opposes going to an appointed system, because it will go to a "who you know" system. Rodriguez agrees.
Marquez said she sees both sides.
Workman said he has struggled with that for a long time. Few people pay attention to those races, so we end up "electing somebody who has a cute name." And they raise money from lawyers who appear before them, creating appearance of conflict of interest. He says voters want to continue electing judges.
A nurse from Travis County jail says he is worried about the mental health problems of inmates and wonders about requiring mental health treatment for inmates who are being released.
Huffman says that continues to be a problem as they discuss re-entry for prisoners. Suggests there is a need for an early assessment of each inmate. "In a lot these communtiies there is no commuity program for them to actually go to," she says. It's also tough to make those who are mentally ill take medication once they are released from prison.
Rodriguez said Texas needs much more investment in mental health services.
"We have a lot people in jail who don't belong there," he said because there is not a mental health system to adequately provide services where they are needed.
Rodriguez recounts story of constituent who took son to juvenile detention facility so she could get medication for him.
Evan Smith is sitting down for a one-on-one with famous criminal defense lawyer Rusty Hardin, who is serving as special prosecutor in the case against former prosecutor and current Williamson County Judge Ken Anderson for his role in Michael Morton's wrongful conviction.
Evan asks Rusy how he got the job of special prosecutor. Rusty says Judge Luis Sturns, who is presiding over the court of inquiry against Anderson, called him. Rusty says last time saw Sturns was in 1990.
Rusty says his role is to be legal advisor to the judge in the case. Sturns, he says, will make the decision about what ought to happen in the case.
Rusty says the question is whether or not the prosecutor failed to give evidence to the defense that would have been material in helping to defend Michael Morton and whether that constitutes some type of crime.
Rusty says he doesn't want to talk about which evidence might be problematic in the case.
Rusty says he wants a criminal justice system that looks at whether the defendant really wrongfully engaged in criminal conduct. He said there are many mistakes — not necessarily the ones in the Morton case — that are just mistakes, not criminal.
The question is if that bad judgment is a crime.
"Most of our crimes do require some kind of bad mental state, and I think that's the way it should be," he said
Evan asks why in the Morton case is there a special prosecutor but not in other exoneration cases?
Rusty says that it's because Morton's representatives pushed for one.
"It's a horrible set of facts," Rusty said.
Courts of inquiry, he said, are not usual.
Prosecutors, he said, can damage not just a case, but the entire system. He is talking about the Sen. Ted Stevens case, which he said was horribly handled by federal officials.
The average prosecutor is concerned about what happened in the Morton case, Rusty said.
He says his understanding is that Morton's motivation is to try to keep this from happening again to others and to find out exactly what happened in his case.
"I don’t get any sense that he’s seeking vengeance," Rusty said.
Evan asks whether Rusty’s time as a prosecutor shapes his thinking about the Morton case.
Says he's told prosecutors in training they have ability do great good and great harm.
We always overreact to particular anecdotes.
When someonthing goes wrong tendency to blame and want to pass law.
Rusty said over the decades Texas has transformed from a very liberal criminal justice system to a very conservative one.
"We need a system that balances compassion with enforcemtn of the law and we don’t have that as much as we used to," Rusty says.
Evan asks about scope of prosecutorial misconduct – TDCAA says not a rampant problem.
Rusty agrees that it's not a widespread problem.
"I just don't think that laws are the solution to periodic misconduct by individuals," he said. It's more likely to present a whole new set of problems.
Rusty says he thinks when DNA testing began, some prosecutors were too resistant to reopening old cases. He said they were too interested in finality.
Evan asks about whether the prosecutorial system is racist.
Rusty says when he first started out as a prosecutor it was a real problem. Most prosecutors felt at the time that minorities would feel more sympathetic with the defendant.
"So they would just make carte blanche decisions," Rusty said.
"It's changed dramatically," Rusty said.
Prosecutors, he said, came to realize that minorities are also often the victims of crimes. He said racism is less frequent now.
"I think the system has largely taken care of that," he said.
"I felt very strongly for victims" as a prosecutor, Rusty said.
For such a long time victims were the minority in the criminal justice system, Rusty said. They had no voice in the court system.
Prosecution allowed him to know you can run the system fairly and still succeed.
But he said he also realized a lot of good people screw up, and it's important to not rush to judgment.
For four years he was considered the worst lawyer in America for allowing Roger Clemens to testify before Congress.
But he said Clemens testified because he was not willing to take the Fifth Amendment.
The night before the Mitchell report he told Clemens if you publicly deny you used steroids, you're going to get an invitation to testify before Congress. If decline you'll get subpoena. Can take fifth and not testify or you can testify and deny using steroids and risk getting charged.
People, he said, assumed Clemens was just gaming the system.
"If you didn't do it what should you do?" Rusty said is the question people face in the criminal justice system every day. The difference for Clemens was he had money to fight.
Rusty says he believes, and more importantly the jury believed, that Clemens was innocent.
Rusty says he has never had a client found not guilty who he believed was guilty.
"A lawyer that only represents the innocent has a very small practice," he said.
Rusty says his he feels the death penalty is an extreme punishment, and if the Legislature did away with it he would be fine with that.
It's never acceptable for innocent person be convicted or executed. But, he said, that doesn’t mean we should throw out whole system.
Life without parole, he says, is an easy out instead of making the hard decision.
“Warehouseing people for all their natural life with no hope is a horrible, horrible thing to do,” he said.
The prison system should have people who, if they change their life, should have hope, he said.
Rusty says he still thinks prosecutors should have immunity for civil liability. Without it, it would be impossible for them to do their job.
Rusty, answering an audience question about the makeup of juries, says he think it's never OK to reject jurors based on their color.
Prosecutors, Rusty said, have a special responsibility to see that justice is done. It's a heavier burden than defense lawyers who are representing their client.
We have started our second morning on the law and order track this morning with state Rep. Tryon Lewis, R-Odessa. The former state district judge is beginning with a discussion of the history of the correctional system in Texas and how it has transformed from the 1970s when it was declared unconstitutional by Judge William Wayne Justice as cruel and unusual punishment.
Around the 1960s, Lewis said, the Texas prison population began to boom. The state population grew 20 percent, and the prison population grew 100 percent.
In the 1980s and 1990s the prison population continued to grow. Texas built more prisons and there was controversy over releasing people because of crowding.
Now, he said, in the 2000s, things have begun to change and the population has steadied in prisons. And most of the controversy has been recently in the juvenile justice system, with problems at some of the larger, rural facilities.
The great thing about what we've done in Texas, he said, is the state has been very proactive about DNA, testing it and keeping it.
He said Texas has more exonerations because we're more proactive about finding out about DNA and wrongful convictions than other states, not because the Texas criminal justice system is flawed.
"There's not a system I can think of that's not going to have aberations," Lewis said. "I don't see an indictment of the system."
He said we need to look at instances of prosecutorial misconduct. And Texas needs to continue to be proactive about DNA testing and seeking out cases of prosecutorial misconduct.
Lewis said he'd like to see the term of judges extended to six years so that they're not constantly campaigning for their next election. That would give them more time in the courtroom, more ability to deal with cases, like those in family law courts, that are backlogged.
The biggest problem that we deal with in criminal courts is mental health issues, Lewis said. Funding is a difficulty, he said. It should be a high priority. He said we could have $4- $5 billion more this biennium than last, so lawmakers should have funds to deal with issues like mental health.
"Mental health treatment is something that we really need to look at," he said.
Rep. Lewis said that he thinks that ensuring that dedicated funds are used for the purpose to which they were dedicated will be a priority during the legislative session. House Speaker Joe Straus and leaders in both parties, he said, are interested in ensuring that funds and fees are spent for what they are meant instead of swept into the general budget to make the budget balance.
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